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C2006/ 1048 , Transcript of Proceedings [2006] AIRCTrans 748 (15 May 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14975-1

SENIOR DEPUTY PRESIDENT HARRISON

C2006/ 1048 

APPEAL BY CHRISTOS, GEORGE
s.45 - Appeal to Full Bench
(C2006/ 1048 )

SYDNEY

2.02PM, TUESDAY, 02 MAY 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE SENIOR DEPUTY PRESIDENT: As is apparent, this hearing is proceeding by way of a video link between Sydney and Perth. I would be happy if the parties in Perth remain seated whilst making any submissions. A transcript of this proceeding is being prepared here in Sydney. There are no appearances here in Sydney. I will take appearances in Perth. Dr Christos, you're appearing for yourself?

PN2

DR G CHRISTOS: Yes, I am, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN4

MR I CURLEWIS: I appear for Curtin University.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Curlewis, you were granted leave to appear below, I take it?

PN6

MR CURLEWIS: I was in the lower, in the Commission, and I seek your indulgence again.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. Dr Christos, parties may be represented by solicitors or barristers with the leave of the Commission. I note that Mr Curlewis represented the University below, and he seeks to do so again before me on appeal. Do you wish to say anything about leave being granted to him to appear?

PN8

DR CHRISTOS: I feel that Curtin should represent itself, to make - to keep matters fair, your Honour. But it's up to you.

PN9

THE SENIOR DEPUTY PRESIDENT: That's your submission?

PN10

DR CHRISTOS: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Leave is granted, Mr Curlewis, to you to appear for the University.

PN12

MR CURLEWIS: Thank you.

PN13

THE SENIOR DEPUTY PRESIDENT: Now, there are a number of matters that need to be addressed. What I think you should both be aware of - well, I should have mentioned earlier, the microphones are quite sensitive and will pick up the shuffling of paper and any whispers, so just bear in mind that if for some reason any of you need to have a discussion with each other or take instructions, either move back from the bar table or seek a short adjournment, and if we could all try and keep the shuffling of papers to a minimum? But having said that, I'm now going to proceed to identify for you the documents that I have.

PN14

I have a notice of appeal lodged by you, Dr Christos, dated 12 April. It comprises some six pages and has one annexure, a report from a psychiatrist dated 11 April 2006. The remainder of the file relates to the notices of listing and a notice of appearance filed by you, Mr Curlewis. I have received the file of Blain DP which contains all of the documents that came into existence when he was dealing with the matter up to and including his decision. At some stage during this proceeding, I will need to speak to you both about Appeal Bench files, but at this stage, there are no appeal books or no multiple copies of any of the relevant documents.

PN15

I know, Dr Christos, that is a matter about which your psychiatrist had expressed a view about an indulgence that should be granted to you in relation to the time to prepare those documents. There are a number of matters I wish to raise. I might start by doing so, but please be assured that if there are any additional matters either of you wish to address, an opportunity will be given to you to do so. I suppose the first thing is the competence of the appeal. May I address this to you, Mr Curlewis, because in effect I suppose I am looking to you for any concessions that you are instructed that you may make, or alternatively, an indication that any particular point or points will not be pursued.

PN16

It seems to me, on my reading of the Regulations and in particular those contained in chapter 7 Part IV of the Regulations, around about Regulations 4.3 and 4.4, that appeals under section 45(1)(b) or (c) may be instituted after - no sorry. Appeals against decisions made under the Pre-Reform Act which this is one, may be instituted within a period prescribed by the Regulations and determined as if the Pre-Reform Act still remained in operation. As I read it, Blain DPs decision on 22 March was a decision made before the pre-reform Act was amended, and even though it is not specifically pleaded, as a general rule there are only a limited number of sub-headings of section 45(1) under which such an appeal could be pursued.

PN17

I'll address Dr Christos on this later, but let's assume for the time being,
Mr Curlewis, it's (b) and/or (c). 4.13 prescribes that the time for instituting such an appeal is to be 21 days from the date of the decision and gives the Commission no discretion to extend time. On my counting, this appeal was filed on the 21st day. The upshot of all of that is I suppose I'm looking to you, Mr Curlewis, for an indication or a concession that the appeal is competent, it has been lodged in time and can proceed and be determined before a Full Bench under the Pre-Reform Act, as if that Act had not been amended. I have just repeated the words of Regulations 4.3 and 4.4. Mr Curlewis?

PN18

MR CURLEWIS: Thank you, your Honour. Your Honour, that is not a point in terms of time that I was seeking to take. I acknowledge that it is just in time. It is on time. I would, nevertheless, not waive my rights in respect of the applicant being given leave to appeal as is required under section 45 in any event.

PN19

THE SENIOR DEPUTY PRESIDENT: Of course. Yes.

PN20

MR CURLEWIS: I wish to address that in due course substantially, but in terms of the filing of a document which purports to be an appeal, we do not take that point.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, the question of leave will be one of the questions that the Full Bench is obliged to consider. Dr Christos, I know you are at a disadvantage because it appears from what I can see there, you do not have a copy of the various Regulations or the Acts that I have been addressing; is that right?

PN22

DR CHRISTOS: I don't, your Honour.

PN23

THE SENIOR DEPUTY PRESIDENT: All right. Well, I can't give you legal advice, but I think I would not be straying too far from what would be appropriate for me to indicate that the upshot of the exchange I had with Mr Curlewis is that your appeal was lodged within time and under the Regulations, it can proceed as if the new Work Choices legislation had not come into operation. In short, it will proceed under the Act as it existed prior to 27 March. Yes. So, what we will then need to address is the question of the stay that you seek in your grounds of appeal. Under the provisions of the Act as they stood prior to 27 March, section 45(4) allowed a Presidential member, or a Full Bench, to stay on such terms and conditions it may consider appropriate, and may issue a stay order that the operation of the whole or part of a decision, until further order of the Full Bench.

PN24

Now, I haven't very elegantly paraphrased section 45(4), but in effect, it is an order that many appellants seek when they wish to stop the order of decision of a member below coming into operation, or wish to stop their obligation to perform some part of a direction under the order until the appeal was resolved. I am unclear at the moment as to what it is that Blain DP did, that you could seek an order staying because he dismissed your application. It's not apparent to me how I would stay, or how it would be appropriate to seek a stay of that. Do you wish to address the question of the stay order that you seek?

PN25

DR CHRISTOS: Yes. Thank you, your Honour. I have 25 years of my work still at Curtin. It's been moved into storage. I'm frightened that if I don't get a stay on the decision that was handed down, that they may throw my stuff out.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. As I understand that, your concern is as to the consequences of your dismissal, rather than the consequences of Blain DP's decision?

PN27

DR CHRISTOS: Yes, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: All right. Now, tell me, when you say your work, are you talking about hard copies of documents that are in the possession of the University?

PN29

DR CHRISTOS: These are papers that were in my office at Curtin when I went on stress leave in February 2004, and when I was sacked, they moved the stuff into storage and as far as I know, it doesn't affect them in any big way. I'd just not want them to do anything with them. I'm scared that the decision handed down by Blain DP may encourage them to do something with my work.

PN30

THE SENIOR DEPUTY PRESIDENT: All right.

PN31

DR CHRISTOS: It is hard copies, paper copies, books, all sorts of things that I have collected over 25 years of work.

PN32

THE SENIOR DEPUTY PRESIDENT: These are documents that you understand that in or about February 2004 were bundled up and put into storage?

PN33

DR CHRISTOS: No, I went on leave in February 2004. They were bundled up and put into storage in October 2005, I believe.

PN34

THE SENIOR DEPUTY PRESIDENT: All right. Mr Curlewis, could you take some instructions about whether such documents are able to be identified in terms of one can point to folders, boxes or something of the like, which would fall within the categorisation of the documents Dr Christos is concerned about, and then secondly, are you able to give any indication about what has or might be done with those documents in the near future? I do not do so on the basis that I have formed the view that this is a matter that might be able to be addressed in the stay; I just do so for the purposes of inquiring as to whether this is an issue that Dr Christos should be, in the short term, concerned about.

PN35

MR CURLEWIS: Thank you, your Honour. Your Honour, I would have to take precise instructions, but to the best of my recollection, as I understood the position when it was before Blain DP, Dr Christos's papers, belongings, were moved into storage, and to the best of my knowledge, they remain in storage. I would have to check that detail, and talking personally, I could see no difficulty them remaining there until this matter is resolved. I don't think there was ever intention, and never would be on the part of Curtin, to throw stuff into the street or to throw it away, but I will take instructions and with your permission, your Honour, get back directly to Dr Christos to say that it will be left where it is, subject - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR CURLEWIS: On the other hand, if it is voluminous, cumbersome, et cetera, there may be a need to ask Dr Christos to collect it, but I will take instructions and there's no need to be other than cooperative in this respect.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes. I appreciate those indications. Dr Christos, in light of that, I would not be inclined to consider further whether that might form a proper ground for you seeking a stay order of the Deputy President's decision. So my inclination at the moment, subject to any further submission you wish to make, is to not deal with the stay, unless you had some other ground that you wish to press the stay, because it seemed to me what your concern is may well be addressed consistent with the observations made by Mr Curlewis, and if it's not to be addressed that way, I can always call the matter on again at short notice

PN39

DR CHRISTOS: I am happy with what was said, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will not dismiss the application for the stay, I just will deal with it no further unless a further application is made by you, Dr Christos, for me to attend to it. So the next question is the provision of appeal books for the purposes of the three members of the Full Bench to consider the matters raised in the grounds of appeal. Dr Christos, what do you propose you will be doing in relation to that matter?

PN41

DR CHRISTOS: I will do anything that your Honour sees fit that I should do. There are some documents, I don't have a clean copy because I wrote on
them - - -

PN42

THE SENIOR DEPUTY PRESIDENT: There's a rule under the Act that deals with the requirements placed on appellants in relation to what copies of documents, what the nature of the documents are that should be filed and an indication that three copies of them should be filed. Are you familiar with that rule? I think it's rule 11.

PN43

DR CHRISTOS: Yes, I am, your Honour. But I received the wrong instructions from the AIRC's helpline. I think I put the wrong phone number down on my form. The phone number that I did ring was 1300-799-675. They told me not to prepare an appeals book until after I had sort of been instructed. I've since been told that that's the situation with the Western Australian Industrial Relations Commission. I am perfectly happy to do my very best to prepare three copies of things. I just need more time.

PN44

THE SENIOR DEPUTY PRESIDENT: All right. Well, under the rules, three copies of these documents are generally required; the decision and order under appeal, so that's the decision of the Deputy President and his order. The transcript of evidence and arguments before the Deputy President, or any relevant extract, and each of the exhibits before the Deputy President. Now, I of course have the Deputy President's file and am in possession of one copy of each of those documents, but not in the form of an appeal book. Just there is one copy. I don't know, Dr Christos, if you appreciate that the compliance with the rule would require you to prepare three copies of each of those documents. Are you in a position to do that?

PN45

DR CHRISTOS: I can, your Honour. I just need more time. I'm very stressed. I'm dealing with a lot of matters at the moment.

PN46

THE SENIOR DEPUTY PRESIDENT: I understand that. I might direct the next question to Mr Curlewis. Mr Curlewis, what I have in mind is the extent to which relief might be granted from the rule and the extent to which the Registry may assist Dr Christos in compliance with the rule and in conjunction with his attending to parts of it. I have not yet absorbed how many exhibits were tendered before the Deputy President. It is one thing for me to identify the numbers, but just what difficulty there might be in preparing three copies of them. Little difficulty will be associated with preparing three copies of the decision, the order and the transcript, I think, and that might be a matter that we would be prepared to assume the burden off. Mr Curlewis, can you help me on that?

PN47

MR CURLEWIS: Your Honour, from my point of view, my client's point of view, there is not a difficulty insofar as time being granted to Dr Christos. If all that is sought in the end is a competent appeal book with appropriate compliance with the rule, if the Registry is able to assist Dr Christos in that respect, there's no difficulty from this part of the bar table.

PN48

THE SENIOR DEPUTY PRESIDENT: Can you help me with having a better feel for the number of exhibits and what the nature of them was, in terms of better appreciating what might be associated with preparing multiple copies?

PN49

MR CURLEWIS: There were a substantial number of exhibits taken, and particularly a large number of policies from the respondent's operations which are exhibits, which are indeed referred to in some part of the decision of Blain DP. There are also in part a large number of submissions by the parties which were received as exhibits and to that extent, I think that the only way it can competently, with respect, be done - one is talking about clean copies - is for them to come from the Registry file, given that the Commissioner would have kept clean copies, and I'm talking here largely on behalf of Dr Christos in that respect.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. As you speak, I am flicking through some of these two rather large volumes here on the bench with me. I understand. I do not know, but Mr Curlewis, is it your view that the Full Bench will require a copy of each of the exhibits?

PN51

MR CURLEWIS: When it comes to argument, I will submit that most of the stuff that was put in was irrelevant, but that's no criticism indeed with respect of Blain DP, but indeed, it is a criticism of the conduct of the applicant's case, but I have to say, given the nature of these proceedings which I have been party to for a long time, Blain DP, correctly in my view, gave a great deal of latitude to the applicant in the submission of a number of documents which would normally have been objected to quite vehemently by myself. I did not object to them and they are on the record.

PN52

I suspect that if they are not put in as exhibits for the appeal, there may well be some debate from the applicant's point of view, or argument, that they should be in there, for whatever purpose. To facilitate the matter going forward, I think with the greatest of respect, to avoid argument, the whole lot should go in because then there will not be a debate, I say, from the applicant's point of view.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Dr Christos, assume for the time being, would you, that you would be, by attending at the Perth Registry of the Commission, able to have access to clean copies of the exhibits and to ensure that you have a full list of exhibits, and then you may or may not make a decision about which exhibits the Full Bench might not need to concern itself with because you won't be addressing them, and subject to Mr Curlewis, understanding that there's certain ones you won't be reproducing, what period of time would you require to access and take three copies of the remainder of the documents? Assuming that the Registry would be able to, for example, assist you with copies of the decision of the Deputy President, the order and the transcript. We would not worry you to prepare three copies of them.

PN54

DR CHRISTOS: Would four weeks be an unreasonable time, your Honour?

PN55

THE SENIOR DEPUTY PRESIDENT: Mr Curlewis, do you wish to respond to that?

PN56

MR CURLEWIS: Your Honour, short of having this matter drag out more than it's worth, I'm not sure that four weeks in fact is - my suggestion is four weeks is dragging the matter out. It could be done a lot more quickly. It is simply getting a full copy of the documents and then paginating them and putting them into three documents; you need three copies for the appropriate parties, but in the end result, I accept Dr Christos says that he's busy, I don't accept the other part of it, but from that point of view, it's in your hands, your Honour.

PN57

THE SENIOR DEPUTY PRESIDENT: It may have assisted you, before I asked for your response, to know that the Full Bench that has been convened to hear this matter will not sit until 20 June in Perth. That was another matter I was going to hear you both on, but that is the date that the Full Bench has set aside for the hearing. So it seems that Full Bench files would be prepared in plenty of time for that date, Mr Curlewis.

PN58

MR CURLEWIS: I do appreciate you giving me early notice of that date, but I am also at this stage obliged to say that I am involved at that particular day in a three-week hearing in the Federal Court, and I would seek for that date to be moved to a more appropriate date, given my long involvement in this matter and the need for this matter to be argued by myself rather than it be specifically on 20 June. That would be my request in that respect. That said, four weeks to do the appeal book would not detract from 20 June.

PN59

THE SENIOR DEPUTY PRESIDENT: All right. Let's deal, then, with the hearing date and we can return to the appeal book date. Now, obviously it is the combination of having three members of the Bench available and sitting together and being in Perth that needs to be attended to. Would you - over what span of weeks does the Federal Court commitment that you have, Mr Curlewis, run?

PN60

MR CURLEWIS: It runs through 20 to 28 June, to the best of my recollection, before French J.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes, I see. So all of that week and all of the next week?

PN62

MR CURLEWIS: Yes. Well, it runs from about 12 June through to 28 June.

PN63

THE SENIOR DEPUTY PRESIDENT: I see.

PN64

MR CURLEWIS: I have to say it's a matter which, sadly, will not settle and it will be running.

PN65

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. I should have written that - there is a transcript being taken, but in any event, from around about the 12th. Well, the 12th is the Queen's Birthday, but it's the weeks commencing 12, 19 and 26 June that look to be a problem for you, Mr Curlewis?

PN66

MR CURLEWIS: Yes. Unfortunately it is, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Do you wish to say anything more about why the Full Bench should allow the opportunity to the University to continue to be represented by you, rather than insist on that foreshadowed date and require it to retain someone else? Or is the submission, in effect, what you have said, the familiarity that you've had and the desire to continue with it?

PN68

MR CURLEWIS: Well, I will expand on that, with your permission. The position is that I was briefed to deal with this specifically because the HR manager at the time was potentially a witness and so a number of parties that could have argued it potentially earlier in the Commission could not, and it was briefed out to independent counsel at the time. That pertains now, even though it is an appeal, I have been briefed in the matter and have had the conduct of it at the University's expense since that date. It has therefore, of the nature of the witnesses, been necessary to brief it out. It would be extremely prejudicial to the University to have to brief it to a new counsel to go through an extremely long transcript with - you will see a number of very, very voluminous documents and it will be extremely expensive to do so.

PN69

Indeed, it cannot go back to the parties that had some knowledge of it, they have given evidence in it and are to some extent tainted by it. That would be the submission I would say, in all fairness it should be adjourned. There is not any great prejudice to any party. One point that is not before the Commission is that whilst the applicant has sought reinstatement, the Commission indicated at the start that depending on - and this is Blain DP's order - the outcome, he would take further submissions and evidence in relation to any remedy sought depending on his order, so that it, if I could say notwithstanding the Full Bench attitude to it, has still got some way to go in terms of further outcome, if there were to be any different view taken by the Full Bench on the matters.

PN70

THE SENIOR DEPUTY PRESIDENT: Yes.

PN71

MR CURLEWIS: So that delaying it for some time for it to be dealt with on another date would not be prejudicial to the applicant.

PN72

THE SENIOR DEPUTY PRESIDENT: May I return to your Federal Court commitment? I understood you to say you hold no confidence that the matter will resolve?

PN73

MR CURLEWIS: No. I would say I have the confidence, unfortunately, it won't resolve.

PN74

THE SENIOR DEPUTY PRESIDENT: All right.

PN75

MR CURLEWIS: It's not a case that I confidently predict is likely to fall apart and I could say that I'd be available. It is just not a case, sadly, that would settle.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. Do you have a view, Mr Curlewis, about whether this appeal is one that could properly be dealt with on papers and by way of written submissions? Or would you rather me direct that, firstly, to Dr Christos? I was with you, so I thought I'd stay with you in relation to that question.

PN77

MR CURLEWIS: I appreciate that. It's not something that's crossed my mind. I would say that from my experience with the case, it has been difficult to plead, if I could put it that way, because the distinction between what are submissions and what is evidence has been blurred substantially in the way it has been conducted. I make no complaint about it, but in representing the respondent, and even in looking at the appeal, you will notice that there's a degree of submission, there's a degree of further evidence and submission and all sorts of stuff in it. So if it is to be done by way of submission, it will be fairly expensive because I will be seeking directions as to what latitude the applicant is given in those submissions again, and I think in a practical sense, it being in writing would probably make it more difficult, in this particular case.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. Yes. Now, Mr Christos, may we deal with that last point first? Do you understand the question I asked of
Mr Curlewis and his answer? Namely, about whether this is an appeal that might be able to be dealt with by the filing of written submissions and documentation, and the upshot of his submissions, for the reasons given, was that he does not believe it is appropriate to deal with it that way. Do you wish to say something about that?

PN79

DR CHRISTOS: Well, the only objection he made was that he said that I'd attached - attach, like, additional evidence. The Full Bench can easily disregard anything that they regarded as additional evidence. I see no reason why it can't
be - - -

PN80

THE SENIOR DEPUTY PRESIDENT: No, I don't think it's that simple. The way these things work is that fresh evidence is sought to be led by an appellant and an application is made to do so, there are certain rules and case law that then needs to be considered by the Full Bench as to whether it is appropriate, and in making a ruling on that, the respondent - the University - is entitled to be heard. So it's not just a case for us to consider what we think might be a fair thing. So all of that procedure that I've mentioned could be the subject of some submissions in a hearing. I think it fair to say in this context too, Dr Christos, that I have looked at your grounds of appeal and I think it is a fair assessment of them, to say that they do appear to be a mixture of grounds of appeal submissions and the making of certain allegations and some of them associated with fresh evidence.

PN81

So in order to know which of those you could properly proceed with before a Full Bench, there would need to be some hearing and some ruling from us saying which ones you can proceed on and which ones you can't, and Mr Curlewis is entitled to be heard on that. But may I say this; my view, and subject to speaking with the two other members of the Full Bench, is that this matter would be better to be heard in open court. That doesn't mean to say some brief outline of submissions mightn't proceed to hearing, but I think it is not a matter that can best be dealt with by way of written submissions, and subject to consulting with my colleagues, that may well be the ruling or directions that we make, Dr Christos.

PN82

So that leads us right back to where I started a little earlier, the question of what documents will be before the Full Bench, what period of time you require to prepare them, and then in turn, when the Full Bench will sit in Perth. I think where we got to is that you need four weeks and the date that the Full Bench had tentatively set aside is not convenient to Mr Curlewis or his client for the reasons he has submitted. Do you wish to make a submission about either of those matters?

PN83

DR CHRISTOS: I don't have any other engagements that I need to worry about and I'm happy to accept any dates that are agreeable to the Full Bench and to Curtin University.

PN84

THE SENIOR DEPUTY PRESIDENT: All right. Yes. I'll have to speak to the other members of the Full Bench, and of course, it is a matter about which the President may need to be consulted, too, he having constituted the Full Bench. Looking at my diary at least, it doesn't look as though I would be able to attend in Perth prior to the allocated date. So without giving either of you any indication as to what the availability might be of all three of us, at least maybe we'll sort out some - your availability, Mr Curlewis. That might be a good start. You would be available, would you, from the week commencing 3 July onwards?

PN85

MR CURLEWIS: Yes, your Honour. I can make myself available. Certainly, it can be done.

PN86

THE SENIOR DEPUTY PRESIDENT: All right. That's a matter we can come back to, both you, Mr Curlewis and you, Dr Christos, if after consulting with my colleagues we can identify another date as soon as possible after the 20th. Yes. Now, Dr Christos, the other issue that concerns me is the notice of appeal that's been lodged by you. I'm aware of the difficulty that you have, and have mentioned in your grounds of appeal and properly pleading grounds of appeal and properly complying with the requirements of the Act and the rules, but I am concerned that it would be difficult for the Full Bench and difficult for the respondent to prepare for the appeal on the basis of the document that you've currently lodged.

PN87

I mentioned earlier some reasons for my concern, but it might be most useful if we actually turned to your notice of appeal, a copy of which I assume you have there with you. I'll give you some examples of what we might need to address. Firstly, at some stage you will be required to identify the subsection of section 45(1) under which you pursue this appeal. It would be inappropriate for me to give you any advice about that matter, but you should be aware that you need to identify a subsection or subsections of section 45(1) as being the ones you proceed under. That is, I think, all I can properly say about that matter at the moment. The form of the document really isn't prepared by way of grounds of appeal that identify what you're complaining about in relation to findings made by the Deputy President.

PN88

Normally to understand what the grounds are, one identifies a finding or a paragraph that you take issue with and you plead why that finding made by the Deputy President was not open to him. Again, I can't go very much further because it would constitute giving you advice, but the Full Bench would be asking you as to what the errors are that you say the Deputy President made. Much of the document that you have filed doesn't identify what the errors are and the reason why you say that the finding of the Deputy President wasn't open to him. The ground of appeal, or the matter addressed in paragraph 1(d) and maybe - yes, may be others, certainly 1(d) relates to discussions that are described as recent, where you spoke to persons at Sony Music Australia and you make a number of assertions about what they said and what the consequences and relevance are of that for the decision of the Deputy President.

PN89

Now, they are matters you need to consider, whether you press them because it may well be, if you do, they would constitute an application by you to lead fresh evidence, a matter about which Mr Curlewis is entitled to be heard and is entitled to oppose the Full Bench receiving any of that evidence. In which case we would either grant you leave, if we were persuaded it was proper to allow you to lead it, and I'm not too sure that the leading of that evidence would necessarily just entitle you to repeat what someone unidentified at Sony had told you. It could go further than that, and require you to present the person to give evidence.

PN90

Alternatively, if we did not think it was a proper application for fresh evidence, nor that the evidence was a matter properly that should be received by the Full Bench, we would simply strike that matter out. We wouldn't take it into account. So you really do need to think about whether you press that matter. I think ground 2(a) falls into a similar category. I think, according to my note, but I might be wrong, I'm sorry. I thought that was a matter - no, no. That was a matter where you have expressed certain views as being on reflection, and they purport to be additional evidence of your own over and above that, that was not before the Deputy President, so that's the sort of thing that would need to be the subject of an application as well.

PN91

In grounds 7 and 8, you make allegations about identified employees who had lied before the Deputy President. They are serious allegations. We would need to know how you develop them and what ruling, or how you say that the Full Bench should, first, be persuaded that they are accurate, and secondly, what the consequences are if the appeal won. If they are the repetition of submissions you made to Blain DP as to whose evidence he should prefer, well, there's other considerations, but they are serious allegations that have been made and they are matters that you need to think about earnestly, as to how you wish to pursue them and what relevance they are to the Full Bench consideration of the appeal.

PN92

In ground 14, you make another very serious allegation and that is one that the Deputy President had a potential conflict of interest. I assume that is raised for the first time on appeal. It is a matter that you need to seriously consider how you wish to develop that and how it is to be put to the Full Bench, what the relevance of it is to the Full Bench in relation to considering the Deputy President was in error in making the decision he did. You should not assume that that is exhaustive in relation to the concerns I would have as one member of a three-member Full Bench, as to identifying what are properly grounds of appeal and what are otherwise submissions or fresh evidence or not relevant to the appeal. But I just thought I'd raise a few of those matters, give you a bit of an idea about the sorts of questions that will potentially be coming to you from a Full Bench if you wish to press the grounds of appeal as currently pleaded.

PN93

I say all of that, well-knowing, Dr Christos, the difficulty you have in not being legally-represented or not having a representative with experience in this place. So, Dr Christos, I wish in the first instance to require you to confirm that either you proceed with the document as filed as your grounds of appeal, or whether there are certain grounds that you do not press, and I wish you to attend to that as quickly as possible. How long would you require for that?

PN94

DR CHRISTOS: Thank you very much for the comments you made about the notice of appeal, your Honour. I wish to amend some of the comments that I made.

PN95

THE SENIOR DEPUTY PRESIDENT: Yes. How long would you require to do that?

PN96

DR CHRISTOS: I'll try to do it within the same period that I must make the photocopies.

PN97

THE SENIOR DEPUTY PRESIDENT: That is too long, Dr Christos. The first thing we need to all know promptly is what the grounds of appeal are, because so much follows from those grounds. For example, it might be when you reconsider the grounds, it becomes apparent that certain documents before the Deputy President no longer need to be before the Full Bench, so it might reduce the burden in relation to appeal books. I do not know. I have not forgotten Mr Curlewis's submission that we should err on the side of caution and have all the documents before us. But that's one possible consequence.

PN98

Clearly, the respondent will then be able to properly address your grounds of appeal if they are identified as ground which raise error and will then know what, if any, fresh evidence you are seeking to lead. They're matters the respondent is entitled to know, and to know as soon as possible. I had in mind that I would require you to do that within seven days. Is there any reason why you would not be able to do that?

PN99

DR CHRISTOS: I'm very stressed and after what you've said, I'm thinking I should talk to my family about seeking assistance to get legal aid in this matter. Seven days, I think, would be very tight for me, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: 14 days?

PN101

DR CHRISTOS: 14 days would be fine.

PN102

THE SENIOR DEPUTY PRESIDENT: All right. Mr Curlewis, I don't think there's much you could say in opposition, but I'll give you an opportunity.

PN103

MR CURLEWIS: Thank you, your Honour. I don't oppose the 14 days. I'm just concerned, and it probably just rolls into the same picture, that were the grounds of appeal to be made in some part coherent so that I could understand exactly the appeal that I was to deal with and the appeal book to be dealt with. It seems to me that, with greatest respect to the Full Bench, that this matter may not in any event be reading for hearing, given the special circumstances, by 20 June. It seems to me, if I may suggest, that given the nature that the applicant, at this stage at least, is unrepresented, that once the further amended - or rather, the amended grounds of appeal are available, that there be perhaps a direction can be - a hearing convened before you, because certainly it's in the back of my mind to apply, even at this stage, to strike out great parts of this notice of appeal.

PN104

I have not done so deliberately, just to see which way it was going to go, and it seems to me, with the greatest of respect, that to actually list the matter before perhaps there is a coherent case for the Full Bench to look at, is premature. It may be therefore appropriate, if I may suggest, that at best, all that happens in this case is that there is an order made that there be amended notice of appeal and that the parties be given some time to consider that and it comes back before you for consideration or application for it to be fine-tuned as a notice of appeal, and that in the meantime, the papers be put together. That would be my submission on that point.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes. Do you understand that, Dr Christos?

PN106

DR CHRISTOS: I do. Thank you.

PN107

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I think I'm persuaded that a further mention would be appropriate shortly after the time that I will give you, to either confirm that your grounds of appeal are as filed, or to file an amended document reflecting the grounds of appeal that you wish to proceed to argue before the Full Bench, and I would be inclined to, in a moment, identify that date. That will be a video-conference hook-up between Perth and Sydney with just me sitting. In the interim, you can also commence to attend to the preparation of appeal books, Dr Christos, because I can return the original file to the Perth Registry, and my chambers can confirm with you which of the documents we will undertake to prepare three copies of, but you can assume it is, as I've said earlier, the decision, the order and the transcript that we will do.

PN108

So should we perhaps now do this? Should we identify another date for having this matter on again for mention and shortly after that, I assume I'll probably be adjourning and having a discussion with the other members of the Full Bench to see if we could identify another date for a hearing shortly after you will be released from your Federal Court commitments, Mr Curlewis, and as soon as we identify that date, to let you both know about it, because then we all know the date we are working towards. So, Dr Christos, if you were to attend to the issue concerning your grounds of appeal, file and serve by no later than Wednesday, 17 May.

PN109

That is two weeks' time. I would be able to provide a video-conference hearing or mention in the following week, the week commencing 22 May. Subject to confirming the availability of this link, is there any particular time in that week you would wish to avoid, Dr Christos?

PN110

DR CHRISTOS: No, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: Mr Curlewis?

PN112

MR CURLEWIS: No, that will be fine, your Honour.

PN113

THE SENIOR DEPUTY PRESIDENT: All right. We'll attend to that matter as soon as we rise here, and let you both know what the time will be.

PN114

MR CURLEWIS: Excuse me, your Honour?

PN115

THE SENIOR DEPUTY PRESIDENT: Yes?

PN116

MR CURLEWIS: Your Honour, may I just - I didn't respond there, I do have a trial on 23 May.

PN117

THE SENIOR DEPUTY PRESIDENT: All right.

PN118

MR CURLEWIS: If it could be the 22nd or the 24th, any time I can fit in with.

PN119

THE SENIOR DEPUTY PRESIDENT: No problems at all. All right. Now, the next thing is whether much would be achieved at the moment by my issuing directions? I'm inclined to think they wouldn't because I think the directions will be better, directions as to whether any outline of submissions needs to be filed and the identification of the grounds that you're going to proceed on, Dr Christos. It might be better to address all of that after we see the document that you do intend to proceed with, be that the one as filed or be it amended grounds. It sounds to me it's likely to be an amended document. Is that right?

PN120

DR CHRISTOS: Yes, your Honour.

PN121

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Then maybe, for today's purposes, all I'll do is indicate that subject to checking the availability of a video-link, we'll send out another notice of listing this matter for mention some time in the week commencing 22 May, but not 23 May, and that by close of business, Wednesday, 17 May, you would have filed and served your amended grounds of appeal, Dr Christos?

PN122

DR CHRISTOS: Yes, I will.

PN123

THE SENIOR DEPUTY PRESIDENT: I don't know that we can go very much further today. Mr Curlewis, is there anything else that you think we can properly attend to?

PN124

MR CURLEWIS: Thank you, your Honour. Just two points of clarity. I understand that you and the other members of the Full Bench will consider potential other dates. Is it your requirement, and I will subject to that, provide your associate with some available dates, or is it simply that it is to be early July in any event?

PN125

THE SENIOR DEPUTY PRESIDENT: Well, by process of elimination, if I am to remain on the Bench, it will have to be early July because I can't do a date prior to your Federal Court commitment, and the way the matter is shaping up, it will be too tight a timeframe anyway. So I think what I'd prefer to do is ascertain that the Full Bench will remain as constituted, what their availability is, and then have my associate ring both you and Dr Christos and give you the earliest possible opportunity to know what the tentative date is and hopefully that will suit you both. Shall I tackle it that way?

PN126

MR CURLEWIS: I'm comfortable, thank you, your Honour. That deals with that. The other point was dealing with the stay. As I understand it, you are about simply to adjourn that to no fixed date. I know that you have said that you will not dismiss it, and I don't want to prolong today's proceedings. From my point of view, I was to say at the beginning that from my point I don't see there's any basis for a stay of the particular orders made by Blain DP. It doesn't seem to me to be the sort of order that in any event is appropriate in these circumstances. From my client's point of view, I would prefer to see the stay dismissed and Mr Christos has the commitment that we will talk to him and cooperate with him insofar as any of his documents are concerned. That would be my submission on that aspect of housekeeping.

PN127

THE SENIOR DEPUTY PRESIDENT: Yes. Dr Christos, did you understand that submission about the stay?

PN128

DR CHRISTOS: Yes, I did, but I don't want a situation where next week I'll be forced to go in there to collect all the stuff while I'm dealing with lots of other matters, your Honour.

PN129

THE SENIOR DEPUTY PRESIDENT: Well, the stay that I would be able to grant is only one that relates to a stay of the decision of the member appealed against, and it's a stay pending the determination of the appeal. Now, the Deputy President dismissed your application and I can't currently see what there is for me to stay. That is a matter that is the subject of section 45(4) of the Act, and they are the only considerations that I give to a stay, although I do know I may grant a stay on certain terms and conditions, but at the moment I would need some persuading that I could venture into any requirements that could be placed on the University in relation to your documentation without hearing from you further.

PN130

That is not immediately apparent to me how I could do that. But I also take into account the indication from the University that it's highly likely they will accommodate your concerns. They have to do, and are highly likely to continue to do so. So do you press the stay order, and if so, would you address me on what it is that the Deputy President has done that you seek to stay?

PN131

DR CHRISTOS: There is in fact one other matter. I am concerned - - -

PN132

THE SENIOR DEPUTY PRESIDENT: Well, let's deal with the stay first.

PN133

DR CHRISTOS: Yes. Yes, I'm with the stay, your Honour.

PN134

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN135

DR CHRISTOS: There is the fact of the matter that Blain DP has said in his decision that I allowed a minor to access pornographic material. This could be very detrimental to my reputation if it was to get into the press and the media, so that would be further grounds to ask to have a stay, to apply for a stay, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: That's not a stay, Dr Christos. That's not the sort of thing that would generally be covered - well, I say that's not - it is novel. It is novel for that to be the sort of matter addressed in a stay. Mr Curlewis, there's obviously other provisions under the Act that Dr Christos should be addressing, should this be a matter of concern to him. Is there any way in which you wish to address this matter? There is additionally the question of what the Commission might be asked to do with its published decisions.

PN137

MR CURLEWIS: Yes. Your Honour, it will facilitate matters, I think. There's no intention on the part of the University to subjugate or in other way demean Dr Christos. There's been a proceeding, there's been a decision, and it will take its course. I have no instructions whatsoever to rush to the press. It's not the way the University does business and whilst I cannot give an undertaking that a person may not, unrelated to the University, find this decision, certainly the bottom line is that what is written is there, it's not going to be deliberately or otherwise published by the University for any purpose. I would hope that gives Dr Christos some comfort and takes it away from asking the Commission to deal with something which is fairly extraordinary in terms of its power.

PN138

THE SENIOR DEPUTY PRESIDENT: Dr Christos?

PN139

DR CHRISTOS: I'm quite upset that Blain DP has written in his judgment that I allowed a minor to access pornographic material and I wish that there be a stay placed on this - placed on that.

PN140

THE SENIOR DEPUTY PRESIDENT: I think you misunderstand what a stay is. I should not say that in no circumstances could a stay order include terms and conditions that might address your concern, but it would be novel, and I would need better submissions than you have made thus far to persuade me I would have power to do so, by way of a stay order. But as I say, I do not rule that it could never be done, I just need to be persuaded. The question of access that was allowed to material in the computer was a matter in issue before the Deputy President. If it was a matter about which he needed to make a finding, it is unlikely that he could be criticised for it.

PN141

I don't, in that respect, talk of whether his finding was right or wrong. I just in that respect say that if one of the grounds your employment was terminated included a ground that related to an allegation of allowing access, that's a matter that the Deputy President was obliged to make a finding about, having heard the evidence. So I can't immediately understand - if that is right and he had to make a finding about it, how I could stay the finding. Dr Christos, I really am finding this difficult to - - -

PN142

DR CHRISTOS: Yes, I follow. I just - it's sort of the question of the legal jargon which I'm not that familiar with, if your Honour pleases.

PN143

THE SENIOR DEPUTY PRESIDENT: No, I understand that. So do you wish to say anything more about the stay order that you seek?

PN144

DR CHRISTOS: I think I clearly need to get legal advice on the matter.

PN145

THE SENIOR DEPUTY PRESIDENT: All right.

PN146

DR CHRISTOS: But I am happy that Curtin University has said that they won't throw any of my papers out and they will keep them in storage until this matter is heard.

PN147

THE SENIOR DEPUTY PRESIDENT: Well, Mr Curlewis, on that matter of the papers of the appellant, I think you said right at the beginning that you might take some instructions and let Dr Christos know directly. That's probably not a matter that the Full Bench need concern itself about, but if you could take those instructions and give some joy to Dr Christos in that respect as soon as possible, that would be good. In relation to the seeking of a stay, I have noted the nature of the decision under appeal and note in particular that the decision was that the application by Dr Christos should be dismissed. There was an order that accompanied that in similar terms. I am not persuaded that it is appropriate that a stay order be granted.

PN148

Dr Christos, you should know that my having said that does not preclude you from an opportunity to apply again for a stay. I'm not encouraging you to do so, I just should let you know that because today I'm not persuaded that what the Deputy President did is appropriate to be stayed, it's just not the sort of order that one would normally stay, does not mean that you are disentitled from renewing that application at some stage between now and when the Full Bench hands down its decision. But that might be a matter you can take some legal advice on. Mr Curlewis, anything further we can attend to this afternoon?

PN149

MR CURLEWIS: No, thank you, your Honour. That's all.

PN150

THE SENIOR DEPUTY PRESIDENT: Dr Christos?

PN151

DR CHRISTOS: No. Thank you, your Honour.

PN152

THE SENIOR DEPUTY PRESIDENT: Now, I think the last thing I wish to indicate before I leave, that this being an appeal, it is appropriate now that any documentation, Dr Christos, that you or indeed the University wishes to file, or any correspondence with my chambers must be served on the other side. It would be normal, if that is not done, for my chambers to direct that anything we receive, a copy be provided to the other side. Bear that in mind. The Commission now adjourns.

<ADJOURNED INDEFINITELY [3.11PM]